Summary

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​In January 2010, a four-year-old girl, “CB,” began exhibiting behavior problems, wetting the bed and becoming violently angry; she was also accused of inappropriate sexual behavior at her daycare, including trying to digitally penetrate the anus of another child. The child also talked about sex and an imaginary friend. In August 2010, CB told her Bible school teacher, Viola Gonzales, that CB’s father David Burns had “hurt” CB; the child described acts of sex abuse. Gonzales reported the suspected abuse, and in September 2010, CB made similar statements to Jill Krol, a forensic interviewer at the Child Advocacy Center, and to Bonnie Skornia, a sexual assault nurse examiner and director of the Child Advocacy Center. During the interview with Krol, CB stated that her “daddy” had told her “not to tell.” At one point, CB told Krol that she had not told anyone about what had happened to her, including Gonzales. When asked if what CB had told Krol was true, CB first said it was “a lie,” then said that it really happened. CB also told Krol that she saw her “daddy” all the time, but in fact she had not seen Burns for almost two weeks before the interview. While CB said that she had been hurt “all the time,” a physical examination revealed no evidence of trauma. CB made a fourth statement about the alleged abuse to her mother in November 2010.

At trial, CB repeatedly refused to testify against Burns. The trial court made various accommodations to encourage CB to testify – moving the jury to a different room to watch CB’s appearance via closed-circuit television, closing the proceedings to the public while CB was on the stand, and allowing CB to give a private deposition in the absence of Burns and the jury – but to no avail. At one point, CB stated, “I don’t want to talk about my Da-da.” According to CB’s mother, CB also said that she wanted to protect her father and was afraid that if he got into trouble, she would not see him anymore. Other witnesses, including Krol and a victim’s advocate, testified that CB feared that if she told the truth, she would be taken away from her mother, and that CB said Burns had told her that she would get in trouble if she told anyone.

After hearing these witnesses and the arguments of the prosecutor and Burns’ counsel, the trial judge ruled that CB’s out-of-court statements to Gonzales and Skornia were admissible under Michigan Rule of Evidence 804(b)(6), as was Krol’s videotaped forensic interview of CB. In general, the hearsay rule excludes from evidence out-of-court statements that are offered for the truth of the matter asserted – but there are exceptions, including situations where the declarant is unavailable. MRE 804(b)(6) permits the admission of out-of-court statements “offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” The prosecutor contended that CB was unavailable as a witness due to Burns’ actions: “[I]t was the wrongdoing of the defendant in telling this child not to tell while he was committing these acts that has led to her unavailability.” The trial court agreed, noting that CB stated during the forensic interview with Krol that Burns told CB, contemporaneously with the alleged abuse, not to tell anybody and that she would get in trouble if she did.

On April 5, 2011, a jury convicted Burns of one count of first-degree criminal sexual conduct (victim under 13 years of age). He was sentenced to 21 to 45 years in prison.

But in an unpublished opinion per curiam, the Court of Appeals reversed and remanded the case for a new trial, holding that the trial court had abused its discretion in admitting CB’s out-of-court statements and the forensic interview video.

“Generally, hearsay is not admissible as evidence,” the appellate panel explained, citing MRE 802. “However, MRE 804(b)(6) allows out-of-court statements to be admitted for the truth of the matter asserted if the statement is ‘offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.’ This rule codifies the common law equitable doctrine of forfeiture by wrongdoing … [which] was aimed at removing the otherwise powerful incentive for defendants to intimidate, bribe, and kill the witnesses against them . . . .”

MRE 804(b)(6) is intended to prevent “coercion, undue influence, or pressure to silence testimony and impede the truth-finding function of trials,” the Court of Appeals observed. “Accordingly, to admit evidence under MRE 804(b)(6), the prosecutor must show by a preponderance of the evidence (1) that the defendant engaged in or encouraged wrongdoing, (2) that the wrongdoing was intended to procure the declarant’s unavailability, and (3) that the wrongdoing did procure the unavailability.”

Burns’ alleged statements to CB do not amount to “wrongdoing” for purposes of MRE 804(b)(6), the appellate panel said. “Although it appears that the purpose of any such statements ‘not to tell’ may have been to prevent the victim from disclosing the criminal acts, it is doubtful that they can be construed as threats intended to prevent the victim from testifying at trial. That is, these statements cannot reasonably be characterized as ‘coercion, undue influence, or pressure to silence testimony and impede the truth-finding function.’”

The trial record showed that there could be other reasons CB refused to testify, including being intimidated by presence of other people in court and the microphone at the witness stand, the appellate court said. “However, we could not discern from the record any evidence that would lead to the conclusion that the victim refused to testify in court because of any threats issued by defendant against the victim.”

The prosecution contended that, even if the evidence was erroneously admitted under MRE 804(b)(6), the evidence would have been admissible on other grounds, so the Court of Appeals should uphold Burns’ conviction. But the Court of Appeals disagreed: “[T]he arguments asserted here by the prosecutor were not raised or decided in the trial court and, therefore, are not properly before this Court.”

But the appellate panel went on to address, and reject, those arguments. The prosecutor contended that Gonzales’ testimony was admissible under MRE 803(3), as reflecting CB’s “then existing state of mind, emotion, sensation, or physical condition” at the time she spoke with Gonzales. The Court of Appeals disagreed: “Here, [CB’s] state of mind was not a relevant issue and the statements allegedly made by the victim to the associate pastor were statements of memory or belief” offered to prove that Burns had abused CB. The panel also rejected the prosecutor’s argument that CB’s statements to Skornia, the sexual assault nurse examiner, were admissible under MRE 803(4) as statements made for purposes of medical treatment or medical diagnosis. “In raising this issue on appeal, the prosecutor failed to address the issue of reliability or any of the factors as indicative of the victim’s understanding to tell the truth. Thus, the prosecution has failed to establish that the victim’s out-of-court statements to the SANE nurse were reliable and, thus, admissible under MRE 803(4).”

The prosecutor also maintained that Burns had waived the right to challenge admission of the recording of CB’s forensic interview because the recording was admitted at Burns’ request, not the prosecutor’s. But the Court of Appeals disagreed: At trial, Burns objected to Gonzales’ testimony, noting that in her interview with Krol, CB said that the first person she told about the alleged abuse was not Gonzales but Krol. The recording was admitted as a separate record and only for the limited purpose of Burns’ objection to Gonzales’ testimony, the Court of Appeals said. “Accordingly, the prosecution’s argument that the doctrine of invited error applies is without merit.”

It was “more probable than not” that the admission of CB’s alleged statements to Gonzales and Skornia, and the recording of the forensic interview, determined the outcome of the trial, the panel said: “In support of his argument that manifest injustice resulted from the improper admission of the hearsay evidence, defendant argues: ‘The prosecution had no physical evidence, no third-party eyewitness, and no in-court testimony from the complainant; the proper exclusion of the out-of-court statements would have left the prosecution with no evidence whatsoever.’ We tend to agree, at least in part … defendant’s conviction must be reversed and this matter is remanded for a new trial.”

The prosecution appealed, and, in an order dated October 31, 2012, the Supreme Court granted leave to appeal. The Court directed the parties to address “(1) whether the trial court abused its discretion in admitting the complainant’s out-of-court statements under the forfeiture-by-wrongdoing exception to the hearsay rule set out in MRE 804(b)(6); and (2) whether the Court of Appeals substituted its judgment for that of the trial court and, in doing so, invaded the fact-finding authority vested in the trial court.”